Thoughts of an activist lawyer

Tag Archives: enforced disappearances

(I delivered the keynote address entitled “In Awe” during the Second International Humanitarian Law Summit at Malacañang yesterday. I am publishing here excerpts of my address where I explained why I was “in awe”.)

I am awed because not too long ago, civil society — which I belong to, was excluded in the task of disseminating and ensuring compliance with our state obligations under IHL. We do not know exactly why the past GMA administration opted to expel civil society from the National IHL Committee. x x x Whatever the real reasons may have been, what we are certain is that the administration that banned us was the same administration that showered adulation on a war criminal, the Butcher Jovito Palparan who today, has gone on “voluntary disappearance and is now a fugitive from justice. What we also know is the same administration that banned us was the same regime that UN Special Rapporteur Philip Alston condemned for its gross breaches of human
rights law. Specifically, Alston, whom a former Secretary of Justice has referred as a “muchacho” of the UN, confirmed that extralegal killings, even if it is still unsure how many there have been, are
evidence that the Philippines is in breach of its obligation to protect and promote the right to life.xxx

I therefore stand before you today as a member of civil society- triumphant- that in an administration that has received a genuine mandate to govern, we are recognized anew as an invaluable partner of the state in the discharge of its obligations under International Law.

I am awed, too, at how a few years can indeed make the difference.

In 2009, Congress enacted RA 9851 that defined war crimes, crimes against humanity and genocide as being criminal. Furthermore, it is a law that codified the applicability of the exercise of universal
jurisdiction for these crimes, the fact that these prosecutions are not subject to prescription, and the fact that the defense of sovereign immunity, including that of a sitting President, may no longer be invoked as a defense for the prosecution of these crimes. xxx

Almost immediately after assuming office, PNoy did what we all thought would talk two lifetimes to realize: he sent the Rome Statute of the International Criminal Court for concurrence of the Senate, paving the way for our membership to the International Criminal Court. Our membership to the ICC is without a doubt a signal to one and all that the Philippines will no longer allow impunity to persist.

The Philippines further ratified and became a party to the 1977 First Additional Protocol to the Geneva Convention and the Optional Protocol to the Torture Convention. Under the additional protocol, the Philippines now ranks as amongst the countries that have undertaken to insulate civilian populations from the adverse consequences of war. Our ratification of the Optional protocol to the Torture Convention, in turn, had the effect of recognizing the jurisdiction of the Torture Committee, the treaty monitoring body for the Convention Against Torture, and will enable our nationals to file individual complaints with the said Committee when they feel that their rights, as provided in the Convention, are not being promoted and promoted by our government.

Finally, in recognition that enforced disappearance is the ultimate form of torture for its victims – who do not know if they should weep for the loss of their loved ones or still hope that they will be
found — Congress has passed its final version of the anti-enforced disappearance law…This promises to be the first law of its act in the whole of Asia. I am confident that the President will either sign it into law or will allow it to lapse into one.

I stand today before you also in awe with the tremendous challenges ahead of us …our burden to discharge our obligations under the aut dedere aut judicare principle, or that states must investigate and punish those who commit international crimes, can only be discharged if our domestic legal system is able to investigate, prosecute and punish those who will commit war crimes and crimes against humanity.

Already, our experience with the prosecutions of ordinary murders,such as the Ampatuan massacre case, the Doc Gerry Ortega case, the Binayug torture case and the unresolved enforced disappearances of Jonas Burgos, the three Islamic scholars who disappeared in the sterile premises of Terminal 3 of the Naia in January of this year, and even the disappearance of prominent lawyer, Atty. Frank “Joe” Zulueta, underscore a tremendous structural challenge now facing us. And while
we acknowledge that the destruction of our criminal justice system was the handiwork of the past dispensation, the task of governance demand that it is this administration that should now rebuild these damaged institutions.

Let us now build the capacity of the PNP to utilize forensic evidence rather than rely on testimonial evidence. The latter is oftentimes cheap or readily available through resort to torture. Let us demand from the National Prosecution Service a better conviction rate- definitely better than its current 1 percent conviction rate for cases involving extralegal killings as reported in the Pareno report commissioned by the Asia Foundation.

Let us dialogue with the Judiciary and discuss if we should instead adopt the inquisitorial system where it is the judge that gathers the evidence in the resolution of a judicial dispute rather than the current adversarial system where the judge is a passive recipient of evidence adduced by the parties.

Perhaps, the ultimate challenge is to aim for the time when IHL becomes a purely academic field of study in this country. This will only happen when we have achieved a lasting and just peace, when armed conflicts remain part of our history, but no longer a part of and not our daily lives. In sa Allah.

The country’s failure to protect and promote the right to life has taken center stage anew. On the eve of the third anniversary of the Ampatuan massacre, President Benigno Aquino III signed Administrative Order No. 35 creating a super-body headed by Justice Secretary Leila De Lima. The body would lead the effort to investigate and prosecute cases of extralegal killings and enforced disappearances in the country. The Secretaries of both the Departments of National Defense and Interior and Local Governments were likewise made members of this super body.

And then, there was the third anniversary of the massacre itself.

Unfortunately, the occasion did not warrant even a presidential remark other than a statement made by the President in a media summit that the government was looking into the cases of media killings. Then, late Tuesday, I received word from media contacts that the Court of Appeals had declared De Lima’s creation of the second DOJ panel to conduct a preliminary investigation into the Doc Gerry Ortega murder case null and void.

How are these three events connected?

Simply put, they explain why killings and enforced disappearances will continue in this country.

The creation of AO 35 was ill-advised. Already, we have at least three serious studies on what steps should be done to put an end to impunity. These are the Melo Commission Report, the Alston Report, and the Asia Foundation’s Parreno report. None of these recommended the creation of yet another body to deal with the killings. In fact, all these inquiries were issued when there was already some sort of super body in existence. President Gloria Macapagal Arroyo created Task Force Habagat in the Philippine National Police followed by Task Force 211, also an inter-agency body. The killings and the disappearances continued despite the existence of these bodies.

The Alston report then concluded that the Philippines is in breach of the duty to protect and promote the right to life because of a lack of political will to prosecute those behind these killings. It made special mention of the Office of the Ombudsman, which, despite its constitutional and legal mandate, has failed to investigate and prosecute even a single state agent for these killings and disappearances.

The Asia Foundation-funded Parreno report, in turn, concluded that the National Prosecution Service is largely to blame for the problem of impunity. To begin with, the NPS has a measly 1 percent conviction rate for cases of extralegal killings.

If at all, this last report has at least identified the weakest link in the fight against impunity: the Executive.

The reality, though, is that decisions such as the Court of Appeals’ nullification of Secretary De Lima’s creation of a second preliminary investigation that charged former Palawan Governor Joel Reyes and his brother for the murder of Doc Gerry Ortega highlight the Judiciary’s role in this culture of impunity.

While I have not seen this decision of the CA, it does highlight why a super body within the executive branch of government alone is not the solution to impunity. While the Parreno report did not identify the Judiciary as the weakest link, it has noted that institutional weaknesses within the Judiciary itself, including notorious delays and perception of corruption, also afflicts the system.

But where does the Ampatuan massacre come in?

It serves as the case study on what happens when there is institutional breakdown of the country’s criminal justice system. The fact remains that while Judge Jocelyn Solis-Reyes and all the lawyers connected with the case, both prosecution and defense, are doing the best that they could to afford justice to both the victims and the accused, it is the system itself that is responsible for failure to accord the parties to the case an adequate remedy under domestic law.

First, the Philippine National Police did not investigate the massacre in a manner that would result in conviction. This much the authorities have admitted, saying that many of their men failed to execute the requisite affidavits of seizures and arrests for fear of retaliation. In like manner, the police have also failed to apprehend about half of the 194 accused charged in the case. The National Prosecution Service, for its part, did not coordinate with the PNP in conducting the investigation of the case to ensure that evidence gathered will stand in court. This was one of the conclusions made by the EP-Just program of the EU: that prosecutors should work hand in hand with the PNP to ensure that the evidence gathered by the police would result in convictions. Then there is the Court that to begin with, is not equipped with rules to handle this many accused for no less than 58 counts of murder.

Yes, the super body created by AO 35 is good copy. Unfortunately, it is a band aid to the “gangrenous” wounds that afflict the pillars of the country’s criminal justice system. In the end, with government offering yet another super body to address impunity, the citizenry is left only with prayers as their ultimate tool against impunity. Let’s pray very hard.

I accompanied the wife and two children of missing lawyer Joe Franck Zuniga to see Justice Secretary Leila De Lima last week. The purpose of the meeting was to solicit the secretary’s assistance in determining the whereabouts of the missing lawyer, the fourth person to have disappeared this year. De Lima did not disappoint. In the said meeting, she announced that she was creating an NBI Task Force to look into the case.

According to the lawyer’s wife, Charito, Zuniga called her on June 20, 2012 to say that he had a meeting at Oceanworld Subic. He has not been heard from nor seen since. His car, a Honda Civic, was recovered the following day in a remote part of Zambales. According to sketchy police reports, the vehicle was driven to the spot where it was found by a man who later boarded a second vehicle. Unfortunately, the witness who reported this failed to get a glimpse of the face of the driver.

Thus far, the family and authorities are facing a blank wall. Charito and the children related how Zuniga recently received what they believe to be a death threat. Apparently, intelligence authorities from Subic furnished the lawyer with a flyer bearing his picture taken in a prayer rally in the vicinity of Central Methodist Church along Taft and Kalaw, Manila. The leaflet bore the cellular phone numbers of the missing lawyer, his home address and the amount of $10,000.00, which they interpreted as the price tag for the life of the lawyer.

The family could think of no one in particular who would benefit from the disappearance of the lawyer. It is of public knowledge though that Protestants have been known to be very vocal in the promotion of social justice, which is why many military operatives have branded some church members from both the United Church of Christ of the Philippines and the Methodists as “communists”.

A second theory has to do with an on-going strife between the break-away Methodist church headed by Zuniga, AIM Philippines, or the Philippine Methodist Church from its mother church, the United Methodist Church -which until today is supported by the Methodist church of the United States. The family told De Lima that Zuniga had been very critical of what he claims to be issues of corruption within the mainstream Methodist church which led to the recent breakaway of Zuniga’s denomination. I myself refuse to believe that a Christian could conspire against a fellow Christian. But Secretary De Lima was correct in noting that this too would have to be investigated by authorities.

Zuniga is not the only victim of enforced disappearance whom I represent. Prior to his disappearance, three Muslim scholars bound for Somalia disappeared presumably at Naia Terminal 3 where their domestic flight from Zamboanga landed. The three never made it to their connecting flight at Terminal 1. The three simply disappeared and their respective families only had the chance to claim their checked-in luggages one month after their disappearance. Like in Zuniga’s case, there has since been no lead on what happened to the three Muslims. Recently I wrote a letter to Secretary Mar Roxas of the Department of Transportation and Communication for him to convene a conference at the airport for all heads of security forces then present at Naia 3 on the date and time of the disappearance of three men. I am confident that given that the immediate arrival area at the Naia is a secure and sterile area, we could account for all security personnel who were in the vicinity of the arrival gate of the flight taken by the three missing scholars. Meanwhile, I have received unconfirmed reports form sources within the security sector that one of the three missing may have already been killed.

It’s ironic that these disappearances happened at the heel of the country’s recent universal peer review at the Human Rights Council. Almost all countries that quizzed De Lima on the Aquino administration’s human rights record expressed concern that the government is in breach of its obligation to promote and protect the right to life against both extralegal killings and enforced disappearances. The concerns were not that Aquino was behind these, but that this administration was not discharging its obligations to investigate, prosecute and punish the perpetrators of these killings and disappearances.

In fairness, I am sure that Aquino himself has never condoned these affronts on the right to life. Unfortunately, part of what international law demands of him is not just to publicly renounce these crimes, but also to punish the perpetrators thereof.

While the numbers of disappearances has not been as large as in other countries such as Peru, there is still reason for alarm. If Zuniga, a seasoned litigator, a respected member of the legal community in Bataan, and a respected church leader could disappear without a trace, what happens now to normal mortals when they disappear?

Geneva, Switzerland. The Philippines will be the object of the Universal Periodic Review (UPR) in May of this year by the United Nations Human Rights Council. The Council is a body composed of 47 states tasked with the protection and promotion of human rights. The Council seeks to achieve its purpose through this periodic review, where states are asked by other states on the level of their compliance with human rights norms. This in turn is premised on the assumption that no state would want to be declared to be in breach of its human rights obligations. It also works through expert rapporteurs, both thematic and country specific, whose function is to conduct investigations to determine states’ compliance with their obligations.

As an adherent of humanitarian law that utilizes penology as an enforcement mechanism, I have been critical of how the UN implements human rights through this shaming machinery. But I had a different insight into the human rights mechanism when I saw it up close. To begin with, the world’s civil society is active here to ensure that non-compliant states are in fact shamed to the fullest. Further, one certainly gets the sense that with all states dutifully attending the many meeting of the UN here in Geneva, states do abhor the prospect of being branded as a violator. Judge Rosalynn Higgins said it succinctly: while violations of the rights of human beings are rampant, states will opt to deny that their conduct violate these rights and will instead argue that their conduct is either compliant or justified. She cited the case of torture. Amnesty International, who together with the German Action Network Human Rights-Philippines, are my hosts here- has once declared that almost all states commit torture. And yet, not one state will acknowledge this and all will still maintain that torture is illegal.
Why am I here? To participate in a side event to discuss human rights under P Noy and to lobby states to question the Philippines why extralegal killings (ELK’s), torture, and enforced disappearances (ED’s) persist.

I argued that extralegal killings, torture and enforced disappearances continue even now because their perpetrators have not been investigated, prosecuted and punished for their acts. Here, I traced the problem to a breakdown in the country’s pillars of its criminal justice system. First, the police do not know how to investigate. A recent study revealed that 8 out of 10 policemen are not trained and are hence incompetent to investigate crimes. There too is the PNP procedure that seeks first to identify the perpetrator of a crime before gathering and processing of physical evidence. Worse, in almost all the heinous crimes that I have been involved as a private prosecutor: the Maguindanao massacre, the Evangelista torture case, the Tanauan massacre, the Bicutan siege, to name only a few, policemen are the perpetrators of these crimes. How can they investigate themselves?

Second, the National Prosecution Service has failed to prosecute. The Perreño report commissioned by the Asia Foundation revealed that their conviction rate for Elk’s and ED’s is a measly 1% . Over-all, no less than the President has said that their conviction is a low of 14%. There may be many reasons for this -including lack of resources and manpower. But what appears to be obvious for now is their adamant refusal to be involved in the investigation of these crimes is responsible for their low conviction rate. Under human rights law, it is the state, acting through the police and the prosecutors, who must investigate and hence gather the evidence to meet the minimum threshold of evidence.

The Courts have at least, through former Chief Justice Reynato Puno, acknowledged that it is also in breach of their duty to protect and promote the right to life. This is due to the perennial problem of court delays and even the incompetence and lack of integrity of some of our Judges.

The decision to make the presentation here was not easy to make. I have been supportive of the administration of P Noy and make no apologies for it. But I opted to attend and am currently even lobbying the international community to confront the Philippines with the issues of ELK’s, torture, and ED’s for two reasons: one, a belief that true friend of an administration should not just sing odes of praise. A friend should commend when it is deserved, and should criticize, when necessary. This is not to overthrow it, but for it to become better. Secondly, I am here because you and I could be the next victims of these crimes.